107 U.S.

711
2 S.Ct. 128
27 L.Ed. 448

STATE OF LOUISIANA ex rel. ELLIOTT and others

v.
JUMEL, Auditor, etc., and others. In Error to the
Circuit Court of the United States for the Eastern
District of Louisiana.
ELLIOTT and others
v.
WILTZ, Governor, and others. Appeal from the Circuit
Court of the United States for the Eastern
District of Louisiana.
March 5, 1883.
[Syllabus from pages 711-712 intentionally omitted]
W. H. Peckham, for plaintiffs in error and appellants.
John A. Campbell, for defendants in error and appellees.
WAITE, C. J.

The legislature of Louisiana, at its session of 1874, by an act known as act No.
3 of 1874, provided for an issue of bonds, to be designated as consolidated
bonds of the state, for the purpose of consolidating and reducing the floating
and bonded debt. The bonds were to be payable to the bearer 40 years from
January 1, 1874, and bear interest at the rate of 7 per cent. per annum, payable
on the first day of July and the first day of January in each year. The amount
was not to exceed in the aggregate $15,000,000. The governor, lieutenant
governor, auditor, treasurer, secretary of state, speaker of the house of

representatives, and a person to be elected by these officers as a fiscal agent of

the state, were created a board of liquidation, with power to issue the bonds and
exchange them for all valid outstanding bonds, and certain valid warrants on
the treasury, at the rate of sixty cents in the new bonds for one dollar of old
bonds and warrants. The bonds were to be signed by the governor, auditor, and
secretary of state, and the coupons by the auditor and treasurer. Section 7 of the
act was as follows:
2

'That a tax of five and a half mills on the dollar of the assessed value of all real
and personal property in the state is hereby annually levied, and shall be
collected, for the purpose of paying the interest and principal of the
consolidated bonds herein authorized, and the revenue derived therefrom is
hereby set apart and appropriated to that purpose, and no other; and that it shall
be deemed a felony for the fiscal agent or any officer of the state or board of
liquidators to divert the said fund from its legitimate channel as provided, and
upon conviction the said party shall be liable to imprisonment for not more
than ten years nor less than two, at the discretion of the court. If there shall
during any year be a surplus arising from said tax after paying all interest
falling due in that year, such surplus shall be used for the purchase and
retirement of bonds authorized by this act; said purchases to be made by the
said board of liquidation from the lowest offers, after due notice: provided, that
the total tax for interest and all other state purposes, except the support of
public schools, shall never hereafter exceed twelve and a half mills on the
dollar. The interest tax aforesaid shall be a continuing annual tax until the said
consolidated bonds shall be paid or redeemed, principal and interest; and the
said appropriation shall be a continuing annual appropriation during the same
period, and this levy and appropriation shall authorize and make it the duty of
the auditor and treasurer, and the said board, respectively, to collect said tax
annually, and pay said interest and redeem said bonds until the same shall be
fully discharged.' By other sections it was provided that any judge, taxcollector, or any other officer of the state obstructing the execution of the act,
or any part of it, or failing to perform his official duty, should be deemed guilty
of a misdemeanor, and on conviction thereof punished; that each provision of
the act should be, and was declared to be, a contract between the state of
Louisiana and each and every holder of such consolidated bonds; that the taxcollectors should not pay over any moneys collected by them to any other
person than the state treasurer; and that no court, or judge thereof, should have
power to enjoin the payment of principal or interest of any of the bonds, or the
collection of the special tax therefor. Immediately after the passage of this act
the state adopted an amendment to its constitution, as follows:

'The issue of consolidated bonds authorized by the general assembly of the

state, at its regular session in the year 1874, is hereby declared to create a valid
contract between the state and each and every holder of said bonds, which the
state shall by no means and in no wise impair. The said bonds shall be a valid
obligation of the state in favor of any holder thereof, and no court shall enjoin
the payment of the principal or interest thereof or the levy and collection of tax
therefor; to secure such levy, collection, and payment, the judicial power shall
be exercised when necessary. The tax required for the payment of the principal
and interest of said bonds shall be assessed and collected each and every year
until the bonds shall be paid, principal and interest, and the proceeds shall be
paid by the treasurer of the state to the holders of said bonds, as the principal
and interest of the same shall fall due, and no further legislation or
appropriation shall be requisite for the said assessment and collection, and for
such payment from the treasury.'
4

Under this authority, consolidated bonds to the amount of about $12,000,000

were issued. John Elliott, Nicholas Gwynn, and Henry S. Walker are the
holders and bearers of these bonds to the amount of $20,000, and of unpaid
coupons due January 1, 1880, to the amount of $78,900. The bonds, in
accordance with the requirements of the act under which they were issued, are
signed by the governor, auditor, and secretary of state, and the coupons by the
auditor and treasurer.

On the first day of January, 1880, a new constitution of Louisiana went into
effect. A portion of that constitution, called the 'Debt Ordinance,' is in these
words:

'STATE DEBT.

'Article 1. Be it ordained by the people of the state of Louisiana, in convention

assembled, that the interest to be paid on the consolidated bonds of the state of
Louisiana be and is hereby fixed at 2 per cent. per annum for 5 years from the
first day of January, 1880, 3 per cent. per annum for 15 years, and and 4 per
cent. per annum thereafter, payable semi-annually; and there shall be levied an
annual tax sufficient for the full payment of said interest, not exceeding three
mills, the limit of all state tax being hereby fixed at six mills: provided, the
holders of consolidated bonds may, at their option, demand, in exchange for the
bonds held by them, bonds of the denomination of five dollars, one hundred
dollars, five hundred dollars, one thousand dollars, to be issued at the rate of 75
cents on the dollar of bonds held, and to be surrendered by such holders; the
said new issue to bear interest at the rate of 4 per cent. per annum, payable
semi-annually.

'Art. 2. The holders of consolidated bonds may at any time present their bonds
to the treasurer of the state, or to an agent to be appointed by the governor,
one in the city of New York and the other in the city of London,and the said
treasurer or agent, as the case may be, shall indorse or stamp thereon the words,
'interest reduced to 2 per cent. per annum for five years from January 1, 1880, 3
per cent. per annum for 15 years, and 4 per cent. per annum thereafter:
provided, the holder or holders of said bonds may apply to the treasurer for an
exchange of bonds,' as provided in the preceding article.

'Art. 3. Be it further ordained, that the coupon of said consolidated bonds

falling due the first day of January, 1880, be and the same is hereby remitted,
and any interest taxes collected to meet said coupon are hereby transferred to
defray the expenses of the state government.'

10

Article 209 of the same constitution provides that 'the state tax on all property
for all purposes whatever, including expenses of government, schools, levees,
and interest, shall not exceed in any one year six mills on the dollar of its
assessed valuation.' Elliott, Gwynn, and Walker demanded of the proper state
officers payment of their coupons which fell due January 1, 1880, but such
payment was refused, the auditor and treasurer stating 'that they could not
comply with the request made of them, owing to the prohibition contained in
article 3, state-debt ordinance of the constitution of the state of Louisiana,
adopted twenty-third July, 1879, and recently promulgated.'

11

All the taxes allowed by the new constitution have been levied for the year
1880, but no proceedings have been taken to levy and collect the five-and-ahalf mill tax under the act of 1874. About $300,000 is in the treasury of the
state, collected under the levy imposed by the act of 1874 to meet the coupons
falling due January, 1880, but the treasurer refuses to apply it to the payment of
the coupons, and claims to hold it only for the purposes to which it was to be
appropriated by the terms of the new constitution. There are also taxes levied
for former years under the act of 1874 which remain uncollected, and which are
subject to future collection and payment into the treasury under the operation of
the collection laws.

12

In this condition of things, the appellants Elliott, Gwynn, and Walker, on the
sixteenth of January, 1880, commenced a suit in equity in the circuit court of
the United States for the eastern district of Louisiana, against the several
officers of the state composing the board of liquidation, and the prayer of the
bill is that it may be

13

'Ordered, adjudged, and decreed' that the act No. 3, of 1874, 'so far as your

13

'Ordered, adjudged, and decreed' that the act No. 3, of 1874, 'so far as your
orator's interests hereinabove declared are concerned, was all the time from its
passage, has been, and, at the time of the rendition of the decree herein prayed
for, is a valid and subsisting law of the state of Louisiana; that the act aforesaid,
the constitutional amendment of 1874, and the several bonds and coupons of
interest held and owned by your orators as aforesaid, separately and together,
constituted, were, and are good, valid, subsisting, and binding contracts
between the state aforesaid and the bearers and holders of the consolidated
bonds and coupons, the obligation of which contract cannot be lawfully or
constitutionally impaired; and that, under and by virtue of such contract, your
orators were and are entitled to take and enjoy all the rights, privileges, taxes,
and moneys particularly set forth and mentioned in act No. 3, and the
constitutional amendment of 1874, aforesaid; that so much of the aforesaid
constitution of 1879 as alters, varies, modified, or changes, or assumes,
purports, or attempts to alter, vary, modify, or change, the provisions of the said
act of 1874, and the constitutional amendment of that year, especially article
208 of the constitution of the year 1879, and that portion of such constitution
known and distinguished as the ordinance on 'state debt,' do impair the
obligation of the contract hereinabove referred to; that the said parts and
portions of such constitution are, therefore, violative of the constitution of the
United States, and are absolutely null and void, and without the slightest force
or effect whatever against complainants; and afford and offer no authority or
warrant for the defendants, or any one or more of them, to make such
disposition or application of any part or portion of the aforesaid taxes, and the
proceeds thereof, collected and to be collected, as to enable the state, therewith,
to defray the expenses of the state government, or to accomplish any purpose or
purposes other than those prescribed in the aforesaid funding act, and
constitutional amendment of 1874; that the defendants, and each of them, may
be adjudged and decreed to replace and reinstate to the credit of said interest
fund any moneys or funds that may have been diverted therefrom; * * * and
that said defendants, and each and every one of them, may be peremptorily
enjoined and restrained from recognizing as valid, against your orators, article
208 of the constitution of Louisiana,' and the 'debt ordinance,' and 'from
ignoring the funding act and constitutional amendment of 1874, and from
doing, and causing to be done, any act or thing whatsoever obstructing,
preventing, or impeding, or tending, directly or indirectly, to obstruct, prevent,
or impede, in the slightest degree, the prompt, full, and complete execution and
enforcement of the act and constitutional amendment aforesaid; and, finally,
that the said defendants, and each and every one of them, may be enjoined and
restrained to such other and further extent, and in such additional way and
manner, as the court may deem right and proper.'

14

On the twenty-sixth of January, 1880, the same parties as relators filed a

petition in a state court of Louisiana against the auditor and treasurer of state
and the several members of the board of liquidation, being Louis A. Wiltz, the
governor, Samuel McEnery, lieutenant governor, Allen Jumel, auditor, Edward
A. Burke, treasurer, William A. Strong, secretary of state, Robert N. Ogden,
speaker of the house of representatives, and the State National Bank of New
Orleans, fiscal agent, for a mandamus requiring them
15

'To apply and pay to the extinguishment of the interest now due and payable
upon the consolidated bonds of the state of Louisiana, or becoming due and
payable upon said bonds, and to the redemption and retirement of such
consolidated bonds, as are provided for and required by the aforesaid act No. 3
of the year 1874, any and all moneys and proceeds of the tax levied or fixed by
said act now in the hands or subject to the control of the said defendants, or
either one of them, or which have been in the hands or subject to the control of
the said defendants, or either one of them, or which may come into their hands
or become subject to the control of either of them, not already applied to the
payment of interest upon the aforesaid bonds, or to the redemption and
retirement of the bonds themselves, as provided for and required in and by said
act No. 3;' and that they 'may furthermore be commanded and required to
proceed, without delay, to collect the tax fixed or levied in and by the aforesaid
act No. 3 of the year 1874, in the manner and to the extent contemplated by that
statute, and to apply and pay all moneys realized from such tax to the discharge
of the interest and redemption of the bonds issued under and by virtue of the
aforesaid funding act No. 3, * * * until the principal and interest of such bonds
be fully extinguished and discharged; and, finally, that the said defendants may
severally be commanded and required to enforce the act herein above last
referred to, and particularly to carry out, perform, and discharge each and every
one and all the ministerial acts, things, and duties respectively required of them
by the aforesaid act No. 3, according to the full and true intent and purport of
that act.'

16

This suit was afterwards removed into the circuit court of the United States for
the eastern district of Louisiana.

17

Upon final hearing the circuit court denied the relief prayed for in each of the
suits, because, as stated in the conclusions of law which were filed in
connection with the findings of fact, it appeared that the respondents were
constitutional officers of the state, and had no relation to the funds collected, or
to be collected, except as such officers; that they were clothed with no authority
and charged with no duty to pay over or collect said funds to or in behalf of the
relators and complainants, but, on the contrary, by the organic law of the state,
under which their offices were created and exist, the provisions of which

constitute their sole mandate, are prohibited from so doing. For these reasons it
was concluded that the state was the party which, by its action in its original
capacity through the people, had rendered the execution of its contract with the
relator impossible through the instrumentality of its officers or functionaries,
and that the question presented was political rather than judicial, and could not
be adjudicated without calling the state to the bar of the court and subverting its
entire financial basis, no matter how unjustly adopted and ordained. From a
judgment and decree to that effect a writ of error and appeal were taken to this
court.
18

The two suits may properly be considered together here, as they were below,
because they present substantially the same questions.

19

We have no doubt it was the intention of the state of Louisiana to enter into a
formal contract with each and every holder of bonds issued under the act of
1874, to levy and collect an annual tax of five and one-half mills on the dollar
of the assessed value of all the real and personal property in the state, and to
apply the revenue derived therefrom to the payment of the principal and
interest of the bonds, and to no other purpose. By the obligation so entered into
it was also agreed that the tax levied by the act and confirmed by the
constitution should be a continuing annual tax until the bonds, principal and
interest, were paid in full; that the appropriation of the revenue derived
therefrom should be a continuing annual appropriation; and that no further
authority than that contained in the act should be required to enable the taxing
officers to levy and collect the tax, or the disbursing officers to pay out the
money as collected in discharge of the obligation of the bonds. Whatever may
be ordinarily the effect of a promise or a pledge of faith by a state, the language
employed in this instance shows unmistakably a design to make these promises
and these pledges so far contracts, that their obligations would be protected by
the constitution of the United States against impairment.

20

It is equally manifest that the object of the state in adopting the 'Debt
Ordinance' in 1879 was to stop the further levy of the promised tax, and to
prevent the disbursing officers from using the revenue from previous levies to
pay the interest falling due in January, 1880, as well as the principal and
interest maturing thereafter.

21

The bonds and coupons which the parties to these suits hold, have not been
reduced to judgment, and there is no way in which the state, in its capacity as an
organized political community, can be brought before any court of the state, or
of the United States, to answer a suit in the name of these holders to obtain such
a judgment. It was expressly decided by the supreme court of the state in State

v. Burke, 33 La. Ann. 498, that such a suit could not be brought in the state
courts, and under the eleventh amendment of the constitution no state can be
sued in the courts of the United States by a citizen of another state. Neither was
there when the bonds were issued, nor is there now, any statute or judicial
decision giving the bondholders a remedy in the state courts or elsewhere,
either by mandamus or injunction, against the state in its political capacity, to
compel it to do what it has agreed should be done, but which it refuses to do.
22

These, then, are suits by creditors at large, of the class provided for in the act of
1874, to compel the officers of the state by judicial process to enforce the
provisions of the act, when the state, by an amendment to its constitution, has
undertaken to prohibit them from doing so, and when the court, if it requires an
officer to proceed, cannot protect him with a judgment to which the state is a
party. The persons sued are the executive officers of the state, and they are
proceeded against in their official capacity. The money in the treasury is the
property of the state, and not in any legal sense the property of the bond or
coupon holders. If lost or destroyed, the loss will fall alone on the state or its
agents, and the bondholders will be entitled to payment in full from other
sources. True, the money was raised to pay this particular class of debts, and
the agreement was it should not be used for any other purpose; but,
notwithstanding this, the state has undertaken to appropriate it to defray the
expenses of the government. In this way the state has violated its contract, and,
if it could be sued, might perhaps be made to set aside its wrongful
appropriation of the money already in hand, and raise more by taxation, if
necessary.

23

That the constitution of 1879 on its face takes away the power of the executive
officers to comply with the terms of the act of 1874 cannot be denied. As
against everything but the outstanding bonds and coupons, this constitution is
the fundamental law of the state, and it is only invalid so far as it impairs the
obligation of the contract on the faith of which the bonds and coupons were
taken by their respective holders. The question, then, is whether the contract
can be enforced, notwithstanding the constitution, by coercing the agents and
instrumentalities of the state, whose authority has been withdrawn in violation
of the contract, without having the state itself in its political capacity a party to
the proceedings.

24

The relief asked will require to officers against whom the process goes to act
contrary to the positive orders of the supreme political power of the state,
whose creatures they are, and to which they are ultimately responsible in law
for what they do. They must use the public money in the treasury and under
their official control in one way, when the supreme power has directed them to

use it in another, and they must raise more money by taxation when the same
power has declared it shall not be done.
25

The parties prosecuting the suits do not, in direct terms, ask for the payment of
the bonds and coupons they hold. In fact, this seems to have been purposely
avoided, for in the suit for mandamus the petition was amended before the
hearing by striking out all that would have the effect of confining the command
of the writ to such a payment, and left the prayer for an order requiring the use
of the money raised under the act of 1874 for the redemption and retirement
generally of all the bonds and coupons of the issue. In the suit in equity, while it
was asked that the debt ordinance of 1879 might be declared invalid as against
the complainants, payment of the amount due was only sought through the
general administration of the finances in accordance with the provisions of the
act of 1874. In neither of the suits was any inquiry to be instituted in respect to
the particular bonds and coupons held by the plaintiffs, or any special relief
afforded as to them. All that is asked will inure as much to the benefit of the
other holders of similar obligations as to the particular parties to these suits. So
that the remedy sought implies power in the judiciary to compel the state to
abide by and perform its contracts for the payment of money, not by rendering
and enforcing a judgment in the ordinary form of judicial procedure, but by
assuming the control of the administration of the fiscal affairs of the state to the
extent that may be necessary to accomplish the end in view.

26

It is insisted, however, that the money in the treasury collected from the tax
levied for the year 1879 constitutes a trust fund of which the individual
defendants are ex officio trustees, and that they may be enjoined as such
trustees from diverting it from the purposes to which it was pledged under the
contract. The individual defendants are the several officers of the state, who,
under the law, compose the board of liquidation. That board is, in no sense, a
custodian of this fund. Its duty was to negotiate the exchange of the new bonds
for the old on the terms proposed. It has nothing to do with levying the tax,
collecting the money, or paying it out, further than by purchasing the bonds
with any surplus there might be from time to time in the treasury over what was
required to meet the interest. The provision in the law that it shall be the duty of
the auditor, treasurer, and the board, respectively, to collect the tax, pay the
interest, and redeem the bonds, evidently means no more than that the auditor
and treasurer shall perform their respective duties under the general laws in the
assessment and collection of the tax, and shall pay in the usual manner the
interest and principal of the bonds as they respectively fall due, and that the
board shall purchase and retire the bonds whenever there is a surplus that, under
the law, is to be used for that purpose.

27

The treasurer of the state is the keeper of the treasury, and in that way is the
keeper of the money collected from this tax just as he is the keeper of other
public moneys. The taxes were collected by the tax-collectors and paid over to
the state treasurer,that is to say, into the state treasury,just as other taxes
were when collected. The treasurer is no more a trustee of these moneys than
he is of all other public moneys. He holds them, but only as the agent of the
state. If there is any trust, the state is the trustee, and unless the state can be
sued the trustee cannot be enjoined. The officers owe duty to the state alone,
and have no contract relations with the bondholders. They can only act as the
state directs them to act, and hold as the state allows them to hold. It was never
agreed that their relations with the bondholders should be any other than as
officers of the state, or that they should have any control over this fund except
to keep it like other funds in the treasury and pay it out according to law. They
can be moved through the state, but not the state through them.

28

In this connection there is much that is instructive in the case of The Queen v.
Lords Commissioners of the Treasury, L. R. 7 Q. B. 387. There money had
been appropriated by parliament for the payment of costs of a particular
character, and an application was made for a mandamus to compel the lords
commissioners of the treasury to pay certain bills which had been properly
taxed, but although the court was emphatic in its declaration that payment
ought to be made, the writ was refused because the lords commissioners held
'the money as the servants of the crown, and no duty was imposed upon them as
between them and the persons to whom the money was payable.' Lord Chief
Justice COCKBURN, in his opinion, said, (page 394:) 'Though I quite agree
that according to the appropriation act they (the lords commissioners) were
bound to apply the money upon the vouchers being produced, and had no
authority to retax these bills, still I cannot say that there is any duty which
makes it incumbent upon them to do what I cannot hesitate to say they ought to
have done, except as servants of the crown; because in that character they have
received the money, and in no other.' And BLACKBURN, J., (page 399:) 'It
seems to me that the obligation, such as it is, is upon her majesty, to be
discharged through her servants, and you cannot proceed therefor against the
servants.' So, here, the obligation is all on the state, to be discharged through its
servants, and the money is held by the officers proceeded against in their
character as servants of the state, and no other.

29

There is nothing in any of the cases in this court that are relied on, which, to our
minds, authorizes any such relief as is asked.

30

In Osborn v. Bank of U. S. 9 Wheat. 738, which is the leading case and cited as

authority in all the others, the object was to prevent money which had been
unlawfully taken out of the bank by the officers of the state from getting into
the treasury. The money was, in legal effect, stopped while passing from the
bank to the treasury. The controlling facts are thus stated by Chief Justice
MARSHALL in the opinion, (page 868:)
31

'But when we reflect that the defendants Osborn and Harper are incontestably
liable for the full amount of the money taken out of the bank; that the
defendant Currie is also responsible for the sum received by him, it having
come to his hands with the full knowledge of the unlawful means by which it
was acquired; that the defendant Sullivan is also responsible for the sum
specifically delivered to him, with notice that it was the property of the bank,
unless the form of having made an entry on the books of the treasury can
countervail the fact that it was, in truth, kept untouched, in a trunk, by itself, as
a deposit, to await the event of the pending suit respecting it,we may lay it
down as a proposition, safely to be affirmed, that all the defendants in the case
were liable in an action at law for the amount of this decree. If the original
injunction was properly awarded, for the reasons stated in the preceding part of
this opinion, the money, having reached the hands of all those to whom it
afterwards came with notice of that injunction, might be pursued, so long as it
remained a distinct deposit, neither mixed with the money of the treasury, nor
put into circulation. * * * The money of the bank had been taken, without
authority, by some of the defendants, and was detained by the only person who
was not an original wrong-doer, in a specific form; so that detinue might have
been maintained for it, had it been in the power of the bank to prove the facts
which are necessary to establish the identity of the property sued for.'

32

Under this state of facts the order for its return involved no question of power to
interfere with what was actually in the treasury. The officers stood in the place
of a sheriff who had levied an execution on goods and was sued to test his right
to keep them, and the principle applied in the decision is thus stated in the
head-note of the report: 'A court of equity will interpose by injunction to
prevent the transfer of a specific thing, which, if transferred, will be
irretrievably lost to the owner, such as negotiable stocks and securities.' Thus
the money seized was kept out of the treasury, because if it got in, it would be
irretrievably lost to the bank, since the state could not be sued to recover it
back. No one pretended that if the money had been actually paid into the
treasury, and had become mixed with the other money there, it could have been
got back from the state by a suit against the officers. They would have been
individually liable for the unlawful seizure and conversion, but the recovery
would be against them individually for the wrongs they had personally done,
and could have no effect on the money which was held by the state. Certainly

no one would ever suppose that by a proceeding against the officers alone, they
could be held as trustees for the bank, and required to set apart from the
moneys in the treasury an amount equal to that which had been improperly put
there, and hold it for the discharge of the liability which the state incurred by
reason of the unlawful exaction.
33

In Davis v. Gray, 16 Wall. 203, the receiver of a land-grant railroad obtained an

injunction against the governor and commissioner of the land-office of Texas to
restrain them from incumbering, by patents to others, lands which had been
contracted to the railroad company. The legal title was in the state, but the
equitable title in the company. The specific tracts of land in dispute were, by
the contract which had been made, segregated from the public domain and set
apart for the company. The case rests on the same principle it would if patents
had been actually issued to the company, and the state, through its officers, was
attempting to place a cloud on the title by granting subsequent patents to others.

34

In Board of Liquidation v. McComb, 92 U. S. 531, which arose under the same

act of 1874 that we are now considering, the board of liquidation was enjoined,
at the instance of bondholders, from admitting to the privileges of the
compromise proposed by the state certain persons other than those originally
provided for and on different terms. And this clearly because the board of
liquidation was, by the very terms of the law, charged with the duty of
exchanging the bonds specifically set apart by the contract for a particular
purpose, and every bona fide bondholder, by accepting the compromise
offered, became personally interested in securing the due administration of the
trust which had thus been committed to the board. In fact, the board held the
new issue of bonds in trust, and every one who gave up his old obligations and
accepted the new in settlement became a beneficiary under the trust, and might
act accordingly.

35

In this case, however, there is no such trust. As has already been said, the board
is charged with no duty in respect to the taxes, except in connection with the
purchase of bonds whenever there are funds which can be used in that way. The
auditor and treasurer are required to audit and pay the coupons as they are
presented, but that does not make them trustees for the bondholders of the
money in the treasury out of which the payment is to be made. They may draw
on the fund raised to make the payment, but that is the extent of their official
control over it. The law has never made it a part of their official duty to separate
from the other moneys in the treasury that which was realized from the taxes in
question, and hold it in trust for the bondholders. The state has contracted not to
use this money in any other way than to pay the debt, but, as against the state,
the officers have no right to say they will keep it for that purpose only. It may

be, without doubt, easily ascertained from the accounts how much of the
money on hand is applicable to the payment of this class of debts, but the law
nowhere requires the setting apart of this fund any more than others from the
common stock. In the treasury all funds are mingled together, and kept so until
called for to meet specific demands.
36

In the Arlington Case, decided at this term,* it was held that the officers of the
United States, holding in their official capacity the possession of lands to which
the United States had no title, could be required to surrender their possession to
the rightful owner, even though the United States were not a party to the
judgment under which the eviction was to be had. Here, however, the money in
question is lawfully the property of the state. It is in the manual possession of
an officer of the state. The bondholders never owned it. The most they can
claim is that the state ought to use it to pay their coupons, but until so used it is
in no sense theirs.

37

Little need be said with special reference to the suit for mandamus. In this no
trust is involved, but the simple question presented is whether a single
bondholder, or a committee of bondholders, can, by the judicial writ of
mandamus, compel the executive officers of the state to perform generally their
several duties under the law. The relators do not occupy the position of
creditors of the state demanding payment from an executive officer charged
with the ministerial duty of taking the money from the public treasury and
handing it over to them, and, on his refusal, seeking to compel him to perform
that specific duty. What they ask is that the auditor of state, the treasurer of
state, and the board of liquidation may be required to enforce the act of 1874,
and 'carry out, perform, and discharge each and every one of the ministerial
acts, things, and duties respectively required of them, * * * according to the full
and true intent and purport of that act.' Certainly no suit begun in the circuit
court for such relief would be entertained, for that court can ordinarily grant a
writ of mandamus only in aid of some existing jurisdiction. Bath Co. v. Ames,
13 Wall. 247; Davenport v. Dodge Co. 105 U. S. 242. Our attention has been
called to no case in the state courts of Louisiana in which such general relief has
been afforded, and the jurisdiction of the circuit court was, therefore, in no way
enlarged through the operation of the removal acts, even if this is a case which
was properly removed,a question we do not deem it necessary now to decide.
The remedy sought, in order to be complete, would require the court to assume
all the executive authority of the state, so far as it related to the enforcement of
this law, and to supervise the conduct of all persons charged with any official
duty in respect to the levy, collection, and disbursement of the tax in question
until the bonds, principal and interest, were paid in full, and that, too, in a
proceeding to which the state, as a state, was not and could not be made a party.

It needs no argument to show that the political power cannot be thus ousted of
its jurisdictian, and the judiciary set in its place. When a state submits itself,
without reservation, to the jurisdiction of a court in a particular case, that
jurisdiction may be used to give full effect to what the state has by its act of
submission allowed to be done; and if the law permits coercion of the public
officers to enforce any judgment that may be rendered, then such coercion may
be employed for that purpose. But this is very far from authorizing the courts,
when a state cannot be sued, to set up its jurisdiction over the officers in charge
of the public moneys, so as to control them as against the political power in
their administration of the finances of the state. In our opinion to grant the relief
asked for in either of these cases would be to exercise such a power.
38

The decree in the suit in equity and the judgment in that for mandamus are
affirmed.

39

FIELD, J., dissenting.

40

I am not able to concur in the judgment in these cases, and I will briefly state
my reasons. I admit that the rule of the common law, that the sovereign cannot
be held amenable to process in his own courts without his consent, is applied in
this country to the state, under which designation are included the people
within its territorial limits, in whom resides whatever sovereignty the state
possesses. But they act and speak in this country, at least in times of peace, only
through the constitution and laws. For their will we must look to these
manifestations of it. If in that way they consent to suits, either directly against
themselves by name, or against any of their authorized agents, there can be no
reasons of policy or of law against issuing process in proper cases to bring them
or their agents before the court. And if, in that way, that is, by their constitution
or laws,they direct their officers to do or omit certain things, in the doing or
omission of which individuals are interested, and they provide appropriate
remedies to compel or enjoin the performance of those things, there can be no
reason why such remedies should not be resorted to when private rights are
involved. And such is the case with respect to the subjects of the present suits.
The state of Louisiana entered into certain engagements with her creditors; she
embodied them in the most solemn form in a statute and in her organic law; she
provided for the levying of a tax to pay those creditors; she prescribed certain
duties for designated officers to perform in its collection and disbursement; she
made it a felony for those officers to divert the fund thus raised to other
purposes; she declared that no further legislation should be necessary for the
collection of the tax or the appropriation of the proceeds, and that for the
collection and payment of the tax the judicial power of the state should be
exercised when necessary. The plaintiffs in these suits seek the enforcement of

these engagements, and they are resisted merely because the engagements are
repudiated by the state, and this court holds that it has no power to stay the
repudiation.
41

That the character and object of these suits may more clearly appear I will
briefly give the history of the action of the state. Prior to 1874 Louisiana had
contracted an indebtedness amounting to about $18,000,000. She asserted that a
large portion of it had been fraudulently contracted; while the holders
contended that their claims were valid, and that she was legally and equitably
bound therefor. Under these circumstances, and with a view to determine the
conflicting claims of the parties, and to liquidate and settle her indebtedness,
she proposed to issue new bonds for 60 per cent. of the alleged indebtedness,
upon the surrender of the claims; and to induce the surrender offered to make
various enactments to secure the principal and interest of the new bonds. In
1874 she passed an act, known as act No. 3 of the laws of that year, entitled:

42

'An act to provide for funding obligations of the state by exchange for bonds; to
provide for principal and interest of said bonds; to establish a board of
liquidation; to authorize certain judicial proceedings against it; to define and
punish violations of this act; to prohibit certain officers diverting funds, except
as provided by law, and to punish violations therefor; to levy a continuing tax
and provide a continuing appropriation for said bonds; to make a contract
between the state and holders of said bonds; to prohibit injunctions in certain
cases; to limit the indebtedness of the state and to limit state taxes; to annul
certain grants of state aid; to prohibit the modification, novation, or extension of
any contract heretofore made for state aid; to provide for the receipt of certain
warrants for certain taxes; and to repeal all conflicting laws.'

43

By this act the governor, lieutenant governor, auditor, treasurer, secretary of

state, and speaker of the house of representatives, and a seventh person to be
selected by them, called a fiscal agent, were constituted a board of liquidation,
and were authorized to issue bonds of the state, to be called consolidation
bonds, payable in 40 years, with interest at 7 per cent., and to exchange them
for valid outstanding bonds and auditor's warrants at the rate of 60 cents on the
dollar. The interest was to be payable semi-annually, on the first of January and
July of each year, and for it coupons were to be annexed to the bonds.

44

The act levied an annual tax of five and a half mills on the dollar of the
assessed value of all real and personal property in the state, and declared that it
should be collected for the purpose of paying the principal and interest of the
consolidated bonds, and that the revenue derived therefrom was thereby 'set
apart and appropriated to that purpose, and no other,' and that it should be a

felony for the fiscal agent, or any officer of the state or of the board of
liquidation, to divert the fund from its legitimate channel. It also declared that
this tax, which is called an interest tax, 'shall be a continuing annual tax until
the said consolidated bonds shall be paid or redeemed, principal and interest;
and the said appropriation shall be a continuing annual appropriation during
the same period, and this levy and appropriation shall authorize and make it
the duty of the auditor and treasurer, and the said board respectively, to collect
said tax annually, and pay said interest and redeem the said bonds until the
same shall be fully discharged.'
45

One section also provided 'that any judge, tax-collector, or any officer of the
state obstructing the execution of this act, or any part of it, or failing to perform
his official duty thereunder, shall be deemed guilty of a misdemeanor, and on
conviction thereof shall be punished by imprisonment not exceeding five years,
and by fine not exceeding $2,000, at the discretion of the court.' *Another
section enacted that each provision of the act should be, and it was declared to
be, 'a contract between the state of Louisiana and each and every holder of the
bonds' issued under the act.

46

But, as though this act was not of itself a sufficient assurance of the unalterable
purpose of the state to fulfill the promise it contained, an amendment to her
constitution was proposed and adopted, of which the following is the first
section:

47

'The issue of consolidated bonds, authorized by the general assembly of the

state, at its regular session in the year 1874, is hereby declared to create a valid
contract between the state and each and every holder of said bonds, which the
state shall by no means and in no wise impair. The said bonds shall be a valid
obligation of the state in favor of any holder thereof, and no court shall enjoin
the payment of the principal or interest thereof, or the levy and collection of the
tax therefor; to secure such levy, collection, and payment, the judicial power
shall be exercised when necessary. The tax required for the payment of the
principal and interest of said bonds shall be assessed and collected each and
every year until the bonds shall be paid, principal and interest, and the proceeds
shall be paid by the treasurer of the state to the holders of said bonds, as the
principal and interest of the same shall fall due, and no further legislation or
appropriation shall be requisite for the said assessment and collection, and for
such payment from the treasury.'

48

It would puzzle the wit of man to find anywhere in the legislation of the world
a more perfect assurance of the fixed purpose of a state to keep faith with her
creditors, or of a pledge of a portion of her revenues for their payment, or of the

submission of her officers to the compulsory process of the judicial tribunals, if

necessary, to carry out her engagements. With the knowledge that the federal
constitution ordains 'that no state shall pass any law impairing the obligations
of contracts,' Louisiana proclaims that each provision of the act shall be and is
thereby declared to be a contract between her and each and every holder of the
bonds issued under the act. And the constitutional amendment reiterates
substantially the same thing by declaring that the issue of the consolidated
bonds created a valid contract between the state and each and every holder of
said bonds, 'which the state shall by no means and in no wise impair.'
49

Under this act and the constitutional amendment, obligations of the state,
amounting to over $12,000,000, were surrendered, and bonds taken for 60 per
cent. of their amount, which are held all over the country. The complainants in
the injunction suit, and the petitioners for the mandamus, hold for themselves
and others, whom they represent, $900,000 of the bonds. The interest on them
has not been paid, and yet a portion of the tax levied to meet such interest has
been collected and is now in the hands of the treasurer of the state, one of the
board of liquidation. The amount is admitted to be about $300,000, and as
collections were being made when this admission was given, there is now,
probably, a much larger amount in his hands. In both suits it is alleged that the
treasurer and other officers of the state intend to use the funds thus collected for
other purposes than the payment of the interest. In one of them an injunction is
asked against such a perversion of the funds. In the other a mandamus is asked
to compel the application of the funds to the payment of the interest, and also
the collection of the taxes authorized by the act of 1874, and the constitutional
amendment of that year, to meet further interest as it shall become due. Why
should not both of these prayers be granted? The only answer offered is that in
1879 Louisiana adopted a new constitution, which reduced the interest on the
consolidated bonds to 2 per cent. per annum for five years, to 3 per cent. for
fifteen years afterwards, and to 4 per cent. thereafter, with a proviso that the
holders of the bonds might take new bonds for 75 per cent. on the dollar,
drawing 4 per cent. interest.

50

The new constitution also directed that the coupon of the consolidated bonds
falling due January 1, 1880, should be remitted, and that the interest taxes
collected for its payment should be transferred to defray the expenses of the
state government. The change in the rate of interest and the remission of the
coupon falling due January 1, 1880, were made without the consent of the
bondholders, or any consultation with them. Of course the new constitution, in
these provisions, is a repudiation of the engagements of the act of 1874 and of
the constitutional amendment of that year, and is a direct violation of the
inhibition of the federal constitution against the impairment of the obligation of

contracts.
51

Is this inhibition against the repudiation by the state of her engagements of any
efficacy? The majority of the court answer 'No.' I answer, adhering to the
doctrines taught by a long line of illustrious judges preceding me, 'Yes, it is;'
and, though now denied, I feel confident that at no distant day its power will be
reasserted and maintained. In that faith I dissent from the judgment of my
associates, and I shall continue to do so on all proper occasions, until the
prohibition inserted in the constitution as a barrier against the agrarian and
despoiling spirit, which both precedes and follows a breach public faith, is
restored to its original vigor.

52

The question whether the court will restrain the diversion of the funds in the
hands of the treasurer, a member of the board of liquidation, is to be considered
precisely as though the new constitution had never been adopted. The
inhibition of the federal constitution is upon the state and not merely upon her
legislature. All the authority which her people can confer, whether by
constitutional enactment or legislative provision, is subject to the inhibition.
Her people are at all times, under the constitution of the United States, subject
to its restrictions, as they are entitled to its privileges. They cannot lawfully
insert in any constitution or organic law provisions contravening that
instrument. They cannot authorize their legislature to pass a bill of attainder, or
an ex post facto law, or a law impairing the obligation of contracts, nor can they
embody in their constitution clauses amounting to or operating as such
enactments. Any such authority or clauses would be treated as nugatory and
futile by all tribunals holding that the constitution of the United States is, what
on its face it is declared to be, the supreme law of the land. Therefore, the new
constitution of Louisiana stands before us, with respect to her past constracts,
with no greater weight than would a legislative enactment containing similar
provisions; and what the state authorizes to be done by her judicial tribunals
against her officers, in the collection of the tax and the application of the
moneys raised for the payment of the interest on the bonds, can be done by the
judicial tribunals of the federal government when a case is transferred to them
from a state court.

53

If the new constitution had never been adopted there could be no question as to
the power of the state courts to require that the moneys collected be applied to
the payment of the interest. It would not only have been the duty of the board of
liquidation to thus apply them, but it would have been a felony to refuse to do
so. Now, whatever enactment, constitutional or legislative, impairs the
obligation of the contract with the bondholdersthat is, abrogates or lessens
the means of its enforcementis void. Therefore, the new constitution, as to

that contract, is to be treated as though it never existed. As said by this court,

without a dissenting voice, only two years ago, in Wolf v. New Orleans:
54

'Legislation producing this latter result, (impairment of the obligation of a

contract, by abrogating or lessening the means of its enforcement,) not
indirectly as a consequence of legitimate measures taken, as will sometimes
happen, but directly by operating upon those means, is prohibited by the
constitution, and must be disregarded, treated as though never enacted, by all
courts recognizing the constitution as the paramount law of the land.' 103 U.S.
365.
And again, in the same case:

55

'The prohibition of the constitution against the passage of laws impairing the
obligation of contracts applies to the contracts of the state, and to those of its
agents acting under its authority, as well as to contracts between individuals.
And that obligation is impaired, in the sense of the constitution, when the
means by which a contract at the time of its execution could be enforcedthat
is, by which the parties could be obliged to perform itare rendered less
efficacious by legislation operating directly upon those means.' Id. 367.

56

No reason in law, therefore, any more than in morals, can be given why the
mandates of the act of 1874 and the constitutional amendment of that year
should not be carried out. There is nothing in the fact that the defendants are
officers of the state. The books are full of cases where executive and
administrative officers of a state have been required by the judiciary to do
certain acts or been enjoined from doing them. And it has not been deemed an
answer to the proceeding that the state was interested in the controversy.

57

In Osborn v. Bank of U. S., decided in 1824, an injunction was sustained

against the treasurer and auditor of Ohio to prevent the seizure of moneys
belonging to the bank in payment of taxes levied under an unconstitutional law
of the state. It was urged with much zeal that the state of Ohio, though not
nominally a defendant, was the real party in interest, and that the suit was in
fact against the state, which it was conceded could not be sued directly. But the
court said, Chief Justice MARSHALL delivering the opinion:

58

'If the state of Ohio could have been made a party defendant, it can scarcely be
denied that this would be a strong case for an injunction. The objection is that
as the real party cannot be brought before the court a suit cannot be sustained
against the agents of that party; and cases have been cited to show that a court

of chancery will not make a decree unless all those who are substantially
interested be made parties to the suit. This is certainly true where it is in the
power of the plaintiff to make them parties; but if the person who is the real
principal, the person who is the true source of the mischief, by whose power
and for whose advantage it is done, be himself above the law, be exempt from
all judicial process, it would be subversive of the best-established principles to
say that the laws could not afford the same remedies against the agent
employed in doing the wrong which they would afford against him could his
principal be enjoined in the suit.' 9 Wheat. 738, 842.
59

These views, as was said in the opinion in the Arlington Case, lately before us,
[1 SUP. CT. REP. 240,] have never been overruled; and the case is cited with
approval in Davis v. Gray, decided in 1872, as establishing, among other
propositions, that

60

'Where the state is concerned, the state should be made a party, if it could be
done. That it cannot be done is a sufficient reason for the omission to do it, and
the court may proceed to decree against the officers of the state in all respects
as if the state were a party to the record. In deciding who are parties to the suit,
the court will not look beyond the record. Making a state officer a party does
not make the state a party, although her law may have prompted his action, and
the state may stand behind him as the real party in interest.' 16 Wall. 220.

61

In Davis v. Gray the governor of Texas was enjoined from executing patents of
certain lands, the sale of which her constitution had authorized, upon the
supposition that the title of a corporation to them had been lost. In considering
the right of a private party to maintain suit against the executive officer of the
state, inasmuch as a suit could not be brought directly against the state, the
court reaserted the doctrine announced in Osborn v. Bank of U. S.

62

The objection suggested was also considered and disposed of in Board of

Liquidation v. McComb, a case against these very officers, decided in 1875.
There the board undertook to liquidate a debt contracted in reconstructing and
keeping in repair levees on the Mississippi river, with consolidated bonds
issued under the act of 1874, pursuant to the authority of a subsequent statute of
the legislature. A citizen of Delaware holding some of the consolidated bonds
contended that the levee debt was not one of the debts to fund which these
bonds had been issued, and that the use of them for that purpose would defeat
one of the benefits of the funding scheme. He therefore applied to the circuit
court of the United States for an injunction to restrain the board from funding
the levee debt with those bonds, and obtained it. On final decree the injunction
was made perpetual, and this court affirmed the decree.

63

'In our judgment, therefore,' said this court, speaking by Mr. Justice
BRADLEY, 'the court below was right in granting the injunction as to the
consolidated bonds, if the defendants, occupying the official position they do,
are amenable to such process. On this branch of the subject, the numerous but
well-considered cases heretofore decided by this court leave little to be said.
The objections to proceeding against state officers by mandamus or injunction
areFirst, that it is in effect proceeding against the state itself; and, secondly,
that it interferes with the official discretion vested in the officers. It is conceded
that neither of these things can be done. A state, without its consent, cannot be
sued by an individual, and a court cannot substitute its own discretion for that
of executive officers, in matters belonging to the proper jurisdiction of the
latter. But it has been well settled that when a plain official duty, requiring no
exercise of discretion, is to be performed, and performance is refused, any
person who will sustain personal injury by such refusal may have a mandamus
to compel its performance; and when such duty is threatened to be violated by
some positive official act, any person who will sustain personal injury thereby,
for which adequate compensation cannot be had at law, may have an injunction
to prevent it. In such cases, the writs of mandamus and injunction are somewhat
correlative to each other. In either case, if the officer plead the authority of an
uncconstitutional law for the non-performance or violation of his duty, it will
not prevent the issuing of the writ. An unconstitutional law will be treated by
the courts as null and void.' 92 U. S. 541.

64

Nor is there any force in the objection that the funds which the complainants
and petitioners seek to reach are in the treasury of the state. They are
appropriated by the law of 1874, and by the constitutional amendment of that
year, to the payment of the interest on the consolidated bonds. The statute
declares that the revenue derived from the taxes levied to pay the interest and
principal of the bonds is 'set apart and appropriated to that purpose, and no
other;' that 'the said appropriation shall be a continuing annual appropriation'
until the bonds are paid or redeemed, principal and interest; and that 'it shall be
deemed a felony for the fiscal agent, or any of ficer of the state or board of
liquidation, to divert the fund from this channel.' The constitutional amendment
declares that no further legislation than that specified therein shall be requisite
for the appropriation of the proceeds of the taxes levied. Nothing more could be
expressed to render the appropriation of the fund for the interest and principal
of the bonds absolutely complete. The fund could not afterwards be diverted to
any other purpose. The ministerial duty alone remained with the officer of the
state having charge of the fund, wherever it might be, to apply it.

65

There would seem to be an impression that to constitute a valid appropriation

there must be some segregation of the amount appropriated from the general

mass of money in the treasury, by which it is placed in packages, bags, or

boxes, separate from the rest and set one side. But nothing of the kind is done,
nor is it required to take the amount appropriated from the control of the fiscal
officers of the state for other purposes. The appropriation is the legalization of
the use of a designated amount in the treasury for a specific object, and an
inhibition of its use in any other way. That is all. Henceforth, to meet the
appropriation, the fiscal officers must retain the designated amount in the
treasury, but not necessarily separated in packages, bags, or boxes from other
funds. Their duty is purely ministerialto hold it and pay it when called for.
Were this not so there could be no appropriations of moneys before their
collection, which it is the constant practice of legislative bodies to make, in
view of anticipated revenue. When the moneys are collected and passed into
the treasury, the appropriation is complete. They are, in the eye of the law,
dedicated to a specific purpose, and the party in whose behalf the appropriation
is made can compel its payment by mandamus, as in the case of appropriations
for the salaries of judges, heads of departments, and others. That writ is the
common and appropriate remedy to enforce such payment.
66

Nor is there any weight in the objection that the officers of the state are called
upon to enforce the collection of the tax. They are simply called upon to obey
the mandates of the law and constitution of the state; both levy the tax, and
designate its amount and the officers to collect it. The statute declares that the
tax shall be a 'continual annual tax' until the bonds are paid or redeemed. The
constitutional amendment declares that 'the tax required for the payment of the
principal and interest of said bonds shall be assessed and collected each and
every year until the bonds shall be paid, principal and interest, and the proceeds
shall be paid by the treasurer of the state to the holders of said bonds, as the
principal and interest of the same shall fall due, and no further legislation or
appropriation shall be requisite for the SAID ASSESSMENT AND
COLLECTION, AND FOR SUCH PAYMENT FROM THe treasury.' here are
provisions for levying, collecting, and appropriating, sufficient for these
purposes, or language is incapable of expressing them. Whatever doubts might
be entertained as to the authority of the legislature to make a levy and an
appropriation to take effect in subsequent years, to meet the interest then
accruing, they are removed by the constitutional amendment. There is nothing
in the reason of the thing why the levy of taxes and the appropriations for all
purposes should be made annually. They may be made for years in advance, if
the constitution of the state so permits, in order to provide for a sinking fund, or
to meet an expenditure for a work which may take years for its completion, or
to meet, as in this case, future interest on its indebtedness. In some of the states
the sessions of the legislature are biennial. The interval between the sessions
might be increased, and there would be quite as much objection, so far as power

is concerned, to the levy of taxes and the appropriations for those periods as for
one year.
67

The tax provided and the appropriation of its proceeds were made for many
years by the amendment to the constitution, which expressed at the time the
will of the people of the state. Nothing is to be done by the court, and nothing is
asked of it, but to require that this will be obeyed.

68

There is another reason suggested against the maintenance of the suits, not, as
appears to me, very potential, but which affects the judgment of some able men
that the obligations of states are purely honorary, and cannot, therefore, be
the subject of judicial cognizance. What is meant by honorary, so far as I can
understand it, is that the obligations may or may not be fulfilled as the states
will; in other words, that they are matters of convenience and not of duty, to be
performed if the caprice of the hour approve, to be disregarded if the caprice of
a subsequent hour disapprove. Or, to use other terms of explanation, as there is
no mode of compelling a state, by suit directly against her, to observe her
obligations, they must be deemed honorary; that is, just so far as they may be
dishonored without redress to those who trusted to her good faith, they are to be
deemed honorary obligations.

69

Whatever merit this suggestion may possess, it can have no place for
consideration here. When a state enters into the markets of the world as a
borrower, she, for the time, lays aside her sovereignty and becomes responsible
as a civil corporation. And although suits against her, even then, may not be
allowed, her officers can be compelled to do what she then contracts that they
shall do. And, as to these consolidated bonds, Louisiana has declared in her
organic law that they created a valid contract between her and each and every
holder, which she 'shall by no means and in no wise impair,' and that no court
'shall enjoin the payment of the principal or interest thereof, or the levy and
collection of the tax therefor,' but that, to secure them, her judicial power shall
be exercised when necessary. These engagements are not imperfect obligations,
mere honorary promises, which she can keep or break without accountability.

70

If a state can successfully repudiate her solemn obligations, can obtain the
surrender of a large portion of the demands of her creditors upon pledges for
the more prompt payment of the remainder, and then set aside as worthless the
pledges given, with no possibility of redress to the creditors, either by
enforcement of the pledges or by a return of the surrendered demands, what
confidence can be reposed anywhere? Public faith will be the synonym of
public dishonesty; and, as I stated on a former occasion:

71

'If the government will not keep its faith, little better can be expected from the
citizen. If contracts are not observed, no property will in the end be respected,
and all history shows that rights of persons are unsafe when property is
insecure. Protection to one goes with protection to the other, and there can be
neither prosperity nor progress where this foundation of all just government is
unsettled.' Sinking-fund Cases, 99 U. S. 767.

72

On he argument much weight was placed upon the decision of the supreme
court of Louisiana in State v. Burke and Hart v. Burke, and they are cited as
authority to the point that no remedy by mandamus exists in the courts of the
state to compel her officers to carry out her engagements; stated, however, in
the opinion as deciding that there is no remedy by mandamus or injunction
against the state in its political capacity,a proposition which no one
controverts. The cases were similar in their character and objects to those now
under consideration; and it was there held that the courts of Louisiana have no
jurisdiction to entertain any judicial proceeding, the object of which is to
enforce the performance of a contract or obligation of the state against her will;
that they have no authority to declare that a provision of her constitution does
not express her will; and that they cannot annul a provision of that constitution
on the ground that it impairs the obligation of a contract with the state, because
such a contract can never become the subject of judicial enforcement against
her will. In these conclusions the court gave no force to the constitutional
inhibition as against the state. It would seem as though it was of opinion that, in
all matters of contract, the inhibition applies only to legislative action. It says:

73

'We have been referred to authorities to the effect that where an officer pleads
the authority of an unconstitutional law as a justification for the
nonperformance or violation of his duty, this will not prevent the issue of the
writ. 9 Wheat. 859; 16 Wall. 220. This may be so when the authority invoked is
a statute under the state constitution; but it is different when the authority is an
article in the constitution itself.'

74

And the court proceeds to lay down the doctrine that clauses of the state
constitution, though violative of the constitution of the United States, express
the will of the state, and, as such, must be respected by her courts. In thus
holding, the court would seem to have lost sight of two provisions of the federal
constitution,one, which declares that 'the constitution, and the laws of the
United States which shall be made in pursuance thereof, * * * shall be the
supreme law of the land;' and the other, which declares that 'the judges in every
state shall be bound thereby, anything in the constitution or laws of any state to
the contrary notwithstanding.' These provisions, which govern in Louisiana as
well as in other states, being overlooked, and the inhibition against the

impairment of the obligation of contracts being limited to legislative action

only on the part of the state, so far as concerns her own contracts, it is not
surprising that the court held that the ordinance of repudiation and shame
embodied in the new constitution was to be obeyed; that its conflict with the
federal constitution was to be disregarded; and that what the state was
prohibited from doing should be deemed the legal expression of her will, and
enforced as such. The decision rests upon the theory that a proceeding against
the officers of the state to compel them to do their duty is a suit against the
state; and that her consent to suit against them has been withdrawn by clauses of
the new constitution. But if those clauses never lawfully became a part of the
new constitutionbecause the state under the federal constitution was
incapable of enacting themthen her consent remains, and the present suits are
simply attempts to compel her officers to do her lawful bidding. The state
cannot speak through an enactment which contravenes the federal constitution.
75

There can be no doubt that, but for the debt ordinance in the constitution of
1879, a mandamus or other compulsory process could have been issued by the
courts of Louisiana to compel officers of the state, and of the board of
liquidation, to execute the provisions of the act of 1874, and of the
constitutional amendment of that year. The Code of Procedure of the state
declares that the object of the writ 'is to prevent a denial of justice or the
consequence of defective police, and it should, therefore, be issued in all cases
where the law has assigned no relief by the ordinary means, and where justice
and reason require that some mode should exist of redressing a wrong or an
abuse of any nature whatever,' (section 830;) and that 'it may be directed to
public officers to compel them to fulfill any of the duties attached to their
office, or which may be legally required of them,' (section 834.) These
provisions are sufficiently comprehensive to embrace the present cases, and
authorize compulsory process against the defendants to enforce the
performance of the duties with which they are charged under the act and
constitutional amendment of 1874.

76

But, independently of them, the constitutional amendment of 1874 of itself

invests the courts of the state with jurisdiction to issue such compulsory
process, by the clause which declares that to secure the levy, collection, and
payment stipulated, 'the judicial power shall be exercised when necessary;' and
that means such power as properly belongs to judicial tribunals, to enforce the
performance by public officers of duties imposed upon them by law.

77

In Marbury v. Madison, 1 Cranch, 137, the conditions under which the writ
will be issued are stated as clearly and happily as anywhere in the reports; and
though the case is familiar to all, some of the observations of the great chief

justice, who there spoke for the court, may properly be repeated. The The
relator there, as is well known, had been appointed a justice of the peace for the
District of Columbia; his commission was signed by the president and sealed
by the secretary of the state, but its delivery to the relator was refused by a new
secretary succeeding to the one who had signed the commission. The court held
that the relator was entitled to his commission, and to withhold it was an act not
warranted by law, but in violation of a vested right, and then proceeded to
consider whether the laws of the country gave him a legal remedy.
78

'The very essence of civil liberty,' said Chief Justice MARSHALL, 'certainly
consists in the right of every individual to claim the protection of the laws
whenever he receives an injury. One of the first duties of government is to
afford that protection. In Great Britain the king himself is sued in the respectful
form of a petition, and he never fails to comply with the judgment of his court.'
And, again:

79

'The government of the United States has been emphatically termed a

government of laws and not of men. It will certainly cease to deserve this high
appellation if the laws furnish no remedy for the violation of a vested legal
right. If this obloquy is to be cast on the jurisprudence of our country, it must
arise from the peculiar character of the case.'

80

He then shows that there was nothing in the character of the case or the nature
of the transaction which exempted it from legal investigation, or prevented the
injured party from having redress; and, among other instances, he referred to
the act of congress of 1794, concerning invalids, as one where the performance
of duties imposed upon the heads of departments might be enforced.

81

'By the act concerning invalids, passed in June, 1794,' he said, 'the secretary of
war is ordered to place on the pension list all persons whose names are
contained in a report previously made by him to congress. If he should refuse to
do so, would the wounded veteran be without remedy? Is it to be contended
that when the law in precise terms directs the performance of an act in which an
individual is interested, the law is incapable of securing obedience to its
mandate? Is it on account of the character of the person against whom the
complaint is made? Is it to be contended that the heads of departments are not
amenable to the laws of their country? Whatever the practice on particular
occasions may be, the theory of this principle will certainly never be
maintained. No act of the legislature confers so extraordinary a privilege, nor
can it derive countenance from the doctrines of the common law.'

And, again:
82

'If one of the heads of departments commits any illegal act, under color of his
office, by which an individual sustains an injury, it cannot be pretended that his
office alone exempts him from being sued in the ordinary mode of proceeding,
and being compelled to obey the judgment of the law. How, then, can his office
exempt him from this particular mode of deciding on the legality of his
conduct, if the case be such a case as would, were any other individual the
party complained of, authorize the process? It is not by the office of the person
to whom the writ is directed, but the nature of the thing to be done, that the
propriety or impropriety of issuing a mandamus is to be determined.'

83

If the act be one which involves discretion, the officer only conforms to the law
in exercising that discretion. If it be one which calls for the consideration of
evidence and the exercise of judgment, he must be left free to act upon his own
conclusions. If, however, the act does not rest in his discretion; if it does not
call for the exercise of judgment, but is a specific duty, imposed by the law,
ministerial in its character, such as the delivery of a commission, the issue of a
patent, the drawing of a warrant, or the payment of moneys appropriated, (the
subject to which the appropriation is made not calling for the exercise of
judgment in its selection,) and individuals have a direct pecuniary interest in the
performance of that duty, the officer is as much subject to the compulsory
process of the judicial tribunals as a private citizen. If it were not so our
government would cease to be a government of laws, and the obloquy to which
MARSHALL refers would be cast on the jurisprudence of the country.

84

It is not, then, the office of the defendants which can preclude an inquiry into
the propriety of calling upon the courts to enforce the performance of duties
imposed by law upon them. The propriety of issuing the writ must be
determined by the nature of the act to be done; whether it is one which they,
under the law, are required to do.

85

No interference is sought with the general financial affairs of the state. These
she may manage as she chooses. What is sought is an injunction to prevent her
officers from diverting to other purposes funds collected for the payment of her
creditors, and a direction to them to proceed and carry out her command as to
the collection hereafter of the specific tax levied by herself, and the
disbursement of its proceeds. The fact that she subsequently made an
unconstitutional attempt to rescind that command cannot affect its character or
efficacy.

86

In Woodruff v. Trapnall, 10 How. 190, decided in 1850, this court enforced a

86

In Woodruff v. Trapnall, 10 How. 190, decided in 1850, this court enforced a

contract of the state of Arkansas in a proceeding by mandamus against one of
her officers, compelling him to receive certain bills in satisfaction of a judgment
recovered by the state, in the face of a subsequent statute prohibiting their
receipt.

87

In Hartman v. Greenhow, 102 U. S. 672, decided only two years since, this
court, with but a single dissenting voice, enforced a contract of the state of
Virginia in a proceeding by mandamus against one of her officers, compelling
him to receive coupons of certain bonds for taxes, pursuant to the law under
which the bonds were issued, although a subsequent law of the state had
forbidden their receipt. And the supreme court of appeals of Virginia has, in
similar cases, after mature consideration, asserted a like authority over officers
of the state, never apparently imagining that the sovereignty of the
commonwealth was at all assailed by judicial process compelling them to do
their duty. The commonwealth has required no reminder from a federal tribunal
to awaken her attention to the invasion of any of her rights of sovereignty.

88

A number of other cases in this court and in the circuit courts might be cited to
the same purport; and if the law respecting contracts with states, and rights of
property acquired from states, is not to be subject to continual change, that law
should remain undisturbed, having been recognized as sound for more than a
third of a century. The doctrine of stare decisis is deemed of great importance
on questions affecting private rights. Much more ought it to be respected and
resolutely adhered to in determinations touching the limits of the powers of the
federal and state governments, and the authority of each over the contracts of
states with individuals. Nor can I perceive in what way the law, as thus
pronounced, encroaches here upon any of the powers of the state. It is
undoubtedly a matter of great importance, indeed of absolute necessity to wise
government in this country, that there should be no interference with the rights
of the states in the management of their local affairs, including in these the
collection and disbursement of their revenues. But if a state contracts to do
certain things, and in order that they may be performed subjects her officers to
the control of the courts, and makes their refusal to carry out her pledges a
felony, it cannot be justly contended that her reserved rights are at all invaded
if her officers are judicially commanded to do what she says they shall do. No
doctrine is here asserted in conflict with the exercise of any rightful authority of
the state. All that is claimed is simply a right to compel her officers to obey her
own enactments, such as were constitutionally passed, and thus became laws,
and to disregard such as she had no power to pass. If the state is above the
constitution of the United States; if the protection of that instrument does not
extend to her engagements with individuals; if her power is as absolute as that
of the parliament of England; if the theory of the federal constitution, that it

binds states as well as individuals, is unsound; if it is not, as it declares itself to

be, the supreme law of the land, then my position falls; but otherwise there is
no answer to it; at least, none that I have been able to see.
89

HARLAN, J., dissenting.

90

Having a deep conviction that the decision of the court is in conflict with the
spirit and tenor of its former decisions, subversive of long-established
doctrines, and dangerous to the national supremacy as defined and limited by
the constitution, I deem it my duty to dissent from it.

91

That the bonds and coupons issued by Louisiana, in pursuance of the statute
and constitutional amendment of 1874, are contracts within the meaning of that
clause of the federal constitution which declares that no state shall pass any law
impairing the obligation of contracts; that the provisions in its new constitution,
known as the debt ordinance of 1879, were intended to impair, and, if enforced,
do impair, the obligation of those contracts; and that such ordinance is,
therefore, a nullity as against bondholders who do not accept its terms,are
propositions so manifestly correct as not to require argument in their support.
Indeed, I understand the court, substantially, to concede them to be sound. As
the constitution of the United States is the supreme law of the land, 'anything in
the constitution or laws of any state to the contrary notwithstanding,' I had
supposed that all state action, whether by legislative provision or constitutional
enactment, must be disregarded when in conflict with that law. Yet this court
holds that it cannot enforce nor restrain the agents of a state from destroying
the obligations of her contract with citizens, upon the ground, mainly, that such
relief will require them, in the discharge of their official duties, to disobey the
orders of what is denominated the supreme political power of that state. The
court, it seems to me, in effect, adjudges that the defendants cannot be coerced
by the courts of the Union to disregard unllifying enactments of their state,
although such coercion, if employed, would only be for the purpose of
enforcing the rightful authority of the constitution, It appears upon the very
face of these proceedings, and is not to be disguised, that those officers refuse
to perform purely ministerial duties, solely because the will of the state is, with
them, paramount, and to be obeyed, although thereby they destroy rights
guarantied by the supreme law of the land.

92

To state the proposition in another from: Here are contract rights which, but for
the nullifying provisions in the new constitution of Louisiana, the courts (as I
will presently show) would unquestionably protect by the process of injunction,
and also by mandamus against the officers of the state compelling them to
discharge plain official duties, requiring in their performance no exercise of

discretion. Now, however, it is determinedif I do not misapprehend the

decision that the judicial arm of the nation is hopelessly paralyzed in the
presence of an ordinance destructive of those rights, and passed in admitted
violation of the constitution of the United States. A statewhich 'cannot be
viewed as a single, unconnected, sovereign power,' but is a member of the
Union under a constitution, the supremacy of which all must acknowledge
assumes to release its officers from the duty of obeying important provisions of
that constitution; and this court, it would seem, holds that it has no power, as
against such hostile action of the state, and in cases like these, to require those
officers to respect private rights guarantied by such provisions.
93

1. What are the terms of the admitted contract between Louisiana and the
holders of the consolidated bonds? By the statute of 1874 a fixed annual tax is
levied for the purpose of paying the principal and interest of the bonds
authorized to be issued; the revenue therefrom is thereby 'set apart and
appropriated to that purpose and no other;' it is made a felony for any officer
to divert it from that purpose; the interest tax is declared to be a continual
annual tax until the bonds, principal and interest, are paid or redeemed; the
appropriation is made a continuing annual one during the same period; and the
levy and appropriation, it is declared, shall authorize and make it the duty of the
auditor and treasurer and the board of liquidation, respectively, to annually
collect the tax, pay the interest, and redeem the bonds until they are fully
discharged.

94

Each provision of the act is declared to be a contract between the state and each
holder of bonds; it is made a misdemeanor for any judge, tax-collector, or other
officer to abstruct the execution of any part of it, or to fail to perform his
official duty; tax-collectors are inhibited from paying over moneys so collected
to any other person than the state treasurer; and it is provided that no court or
judge of the state shall have power to enjoin the payment of the principal or
interest of the bonds or the collection of the special tax therefor.

95

These provisions were embodied in the constitution of Louisiana, by an

amendment adopted in 1874, and, with a view of facilitating the sale of the
bonds, provided for in the act of that year, it declares that such issue creates 'a
valid contract between the state and each and every holder of said bonds, which
the state shall by no means and in nowise impair;' that 'no court shall enjoin the
payment of the principal or interest thereof, or the levy and collection of the
taxes therefor;' that 'to secure such levy, collection, and payment, the judicial
power shall be exercised when necessary;' that the tax required for the payment
of the principal and interest of such bonds 'shall be assessed and collected each
and every year until the bonds shall be paid, principal and interest, and the

proceeds paid by the treasurer of the state to the holders of said bonds, as the
principal and interest of the same shall fall due; and, lastly, 'that no further
legislation or appropriation shall be requisite for the said assessment and
collection, and for such payment from the treasury.'

96

With these statutory and constitutional provisions in force, the state issued
bonds to the amount of about $12,000,000, and taxes were assessed, collected,
and paid over to the state treasurer solely for the purpose of meeting their
interest. Of the amount collected to pay coupons maturing January 1, 1880,
about $300,000 are in the state treasury. The state officers refuse to apply the
mony for that purpose, or to take any steps towards further collections, as
enjoined by the statute and constitution of 1874.

97

2. What has the state done that impairs the obligation of her contracts? By her
debt ordinance the coupons falling due the first of January, 1880, are 'remitted'
without the consent of creditors, and the interest tax already collected is therein
directed to be used exclusively for the payment of the expenses of the state
government. Unless the holders of consolidated bonds are paid out of this
money, raised for their benefit exclusively, and unless future collections are
made as required by the contract, they will be wholly without remedy, and their
bonds will cease to have any value. Plainly that ordinance is a breach of the
plighted faith of the state. The financial world, as we have seen, was assured by
legislative provision and constitutional enactment that what the state officers
now propose to do should never be done; that those who took these bonds
might rely upon a fixed annual levy to meet the principal and interest; that all
money thereby raised should be applied exclusively to that purpose; and that
not only the officers of the state should assess, collect, and pay as the contract
stipulates, but that the power of the judiciary should be exercised, whenever
necessary, to enforce its obligation. These laws, in their substantial provisions,
are as binding on the state, and are as much a part of the contract, as if those
provisions had been set forth in its stipulations. McCracken v. Hayward, 2
How. 613; Bronson v. Kinzie, 1 How. 311; Walker v. Whitehead, 16 wall. 317;
Planters' Bank v. Sharp, 6 How. 327; Edwards v. Kearney, 96 U. S. 607;
Louisiana v. New Orleans, 102 U. S. 206.

98

It cannot be said that the state has any more right by law it impair the
obligation of its contracts than it has, by law, to impair the obligation of
contracts between individuals. It has long been the settled doctrine of this court
that contracts with states are as fully protected by the constitution against
impairment by state law as contracts between individuals. Providence Bank v.
Billings, 4 Pet. 514; Green v. Biddle, 8 Wheat. 1; Woodruff v. Trapnall, 10
How. 190; Wolff v. New Orleans, 103 U.S. 358.

99

3. If the debt ordinance of Louisiana is in violation of the constitution of the

United States and therefore a nullity as against the holders of consolidated
bonds,if the latter are entitled by the terms of their contract to be paid out of
the moneys collected for their benefit and to have further collections made,is
there any mode, known to the law, by which their rights can be protected? My
brethren of the majority answer this question in the negative when they adjudge
that no relief whatever can be given in either of these suits. One is a suit in
equity commenced in the circuit court of the United States by holders of
consolidated bonds to prevent, by injunction, officers of the state from using
the proceeds of taxes already raised under the statute and constitution of 1874,
for any purpose other than that for which they were collected and paid to the
state treasurer. In the other suit, the plaintiffs, holders of consolidated bonds,
and citizens of New York, ask a mandamus against the state officers compelling
the application of the moneys so collected to the payment of their coupons, and
also the collection of taxes to meet future interest as it becomes due.

100 Some comment is made upon the extended nature of the relief asked by
plaintiffs. It is sufficient to remark that the court is never bound to give relief to
the full extent demanded; and all relief is not to be denied because more is
asked than the court will grant under any circumstances, or in the particular
case. And there is no ground, I submit, for the suggestion that granting relief
would require the administration, by the court, of the general finances of the
state. What should be done, if properly it may be, is, by necessary orders, to
prevent the officers of the state from depriving creditors of moneys which by
express contract have been set apart and appropriated exclusively to the
payment of their claims. There is no obstacle to the payment out of that fund,
except the prohibition in the void debt ordinance of 1879. It is admitted that it
can be easily ascertained from the accounts how much of the money in the
treasury is applicable to this class of debts. Indeed, it appears from the opinion
in Newman v. Burke, hereafter referred to, that the treasurer and fiscal agent of
Louisiana held within their control, when these suits were commenced, all the
moneys raised under the statute and constitution of 1874 to meet the interest
falling due January 1, 1880. They have in their hands more than enough to pay
the coupons of January 1, 1880, held by the parties now before the court.
Further,a fact most significant in view of the suggestion that these moneys
are mingled with other moneys in the state treasury, the interest fund created to
pay coupons maturing January 1, 1880, were, by an act of the general assembly
of Louisiana, approved January 4, 1882, directed to be invested in United States
bonds. Acts La. 1881, p. 50. And it is not pretended that payment from that
fund will produce the slightest confusion in the treasurer's accounts, or involve
the use of moneys raised for other and distinct purposes. If any confusion
ensues from such an application of these moneys, it would be only of that kind

which arises when the law prevents a repudiating debtor from misappropriating
funds, in his hands, that have been dedicated to a specific purpose.
101 It is apparently urged, as an obstacle in the way of relief, that plaintiffs do not
seek to have the proceeds of these taxes applied specially to the payment of
their claims, but ask such orders as will enable all holders of consolidated bonds
to participate in the distribution of the moneys raised under the statute and
constitution of 1874. Had the application for mandamus sought the application
of the moneys solely to pay the coupons held by the plaintiffs, it might,
perhaps, have been urged as ground for its refusal that each bondholder had an
interest in the fund so created. Boyer v. State Treas. 32 La. Ann. 177. If the
relief asked cannot be given for the benefit of all holders of consolidated bonds,
there would seem to be no difficulty in restricting payments to such as are
actually before the court in person or by representation. It is, however, proper
to say that notwithstanding the criticisms made by the court upon the nature
and extent of the relief asked, I do not feel authorized to infer from its opinion
that relief would be given to the parties before it, had they asked payment only
of their coupons. The opinion seems to proceed upon the broad ground that, as
Louisiana is not directly suable in its corporate capacity, the courts of the Union
cannot reach its agents employed, under its orders, in the work of destroying
the contract rights of plaintiffs.
102 4. The these suits forbidden by the eleventh amendment of the federal
constitution, which declares that the judicial power of the United States shall
not be construed to extend to any suit in law or equity commenced or
prosecuted against one of the United States by citizens of another state? I
understand the court, in effect, if not in terms, to hold that they cannot be
maintained without violating that amendment.
103 The first authority cited in support of that view is The Queen v. Lords Com'rs of
the Treasury, L. R. 7 Q. B. 387. It appears that by an act of parliament a round
sum was appropriated to the crown to be used in paying costs incurred in
prosecutions at assizes and quarter sessions in England, formerly paid out of
county rates. Bills of costs having been passed by local officers, certain items
were disallowed and others reduced by the lords of the treasury. Subsequently a
rule went against the latter to show cause why a writ of mandamus should not
issue compelling them to pay these bills out of the funds appropriated to the
crown for such purposes. The judges, although of opinion that the defendants
should be governed by the taxation of the local officers, declined to grant the
writ. The question, said COCKBURN, C. J., was 'whether the lords
commissioners of the treasury, when this money got into their hands, are bound
to apply it as servants of the crown, or as the servants of the parliament who

voted the money.' Said BLACKBURN, J.: 'The question remains whether there
is any statutable obligation cast upon the lords of the treasury to do what we
asked to compel them to do by mandamus, namely, to issue a minute to pay that
money; because, it seems to me clear that we have a right to grant a mandamus
if there is such a statutory obligation, particularly when the application is made
on behalf of persons who have a direct interest in the matter,' etc. Similar
declarations were made by the other judges. They all concurred in denying the
writ upon the ground that the money was voted, not to named officers to be by
them applied to a designated purpose, but as 'a supply to the crown;' that the
officers who distributed it for the purposes named acted as servants of the
crown, not as servants of parliament; that a suit against those officers was
therefore one against the sovereign, whom, said Chief Justice COCKBURN,
the court of queen's bench had no power, even in appearance, to command.
104 It seems to me that case furnishes no support for the suggestion that these are
suits against the state, simply because they are brought against its officers. It
does not conflict with the proposition that the state treasurer can be compelled
to apply the proceeds of these taxes as stipulated in the statute and constitution
of 1874, which were his sole authority to receive them. Here there is a
statutable obligation upon him to pay the coupons as they matured. And to that
is added the obligation imposed by that constitution, which, in terms, declares
that the proceeds of taxes collected under the act of that year 'shall be paid by
the treasurer of the state to the holders of said bonds, as the principal and
interest of the same shall fall due,' without further legislative authority. These
obligations remain upon the officer, unless it be that the debt ordinance,
although unconstitutional and void, has discharged them. Had parliament,
instead of the act involved in the case cited, passed one directly imposing upon
the defendants the duty of paying out of moneys appropriated for that purpose a
certain class of claims, it is manifest that the court of queen's bench would have
compelled them, by mandamus or other process, to perform that duty. In the
case supposed there would have been a statutable obligation which the court
would not have permitted the defendants to evade on the pretext that they were
officers under the crown.
105 This distinction is well illustrated in Grenville-Murray v. Farl of Clarendon, L.
R. 9 Eq. 20. There the plaintiff sought a decree for the value of certain services
alleged to have been rendered by him in the diplomatic service. He claimed that
he was entitled to be paid out of certain money voted by parliament to the
foreign office. Lord ROMILLY, M. R., said:
106 'It [the money so voted] is not paid in trust for any particular person. The case
that was cited was to this effect: that if parliament votes a sum of 1,000 to

John Smith, and the treasury devote in their books the payment of that sum to
other purposes, then a mandamus will lie to the treasury in order to pay that
1,000 to John Smith. But there is nothing of the sort here. Parliament has
merely voted certain sums to her majesty, and of these sums 600,000 are to be
applied to the foreign office. The distribution of that amount is left to the
officers of the foreign office, to apply in such a manner as is most subservient
to her majesty's service and to the due support of the foreign office, and there is
nothing whatever to connect the plaintiff with a penny of this money in any
aspect. It is impossible for me, therefore, in that state of things, to say that there
is any trust for him.' There is another consideration which strengthens this
position; that is, the supremacy of the constitution of the United States over
state constitutions and state laws. To the duty imposed by the statute and
constitution of 1874 upon its officers, there is superadded the duty imposed by
the supreme law of the land not to regard as binding any state enactment which
impairs the obligation of contracts.
107 If the case cited from the queen's bench were susceptible of a different
construction, it should not have controlling influence. Here no such relations
exist between the executive and judicial departments as exist in England
between the crown and the courts. This was shown in the elaborate opinion of
Mr. Justice MILLER, speaking for the court in the Arlington Case. That was
ejectment to recover real estate in the actual possession of officers who claimed
it, not in any personal right, but for the United Statesproperty used and
occupied as a cemetery for the dead soldiers of the Union. It was contended
that a suit against officers of the United States, having for its object to disturb
their possession, was a suit against the government. In support of that position
numerous cases were cited from the English courts which held that a suit could
not be maintained against officers of the crown. But we held that upon such a
question but little weight should be given to those adjudications; that there is a
vast difference in the essential character of the two governments in reference to
the source and depositaries of power; that while in England the crown, the
fountain of honor, cannot be disturbed in its possession of property by process
directed against its officers or agents, 'under our system the people, who are
their subjects, are sovereign;' that 'their rights, whether collective or individual,
are not bound to give way to a sentiment of loyalty to the person of the
monarch;' that 'the citizen here knows no person, however near to those in
power, or however powerful in himself, to whom he need yield the rights which
the law secures to him when it is well administered;' that 'when he, in one of
the courts of competent jurisdiction, has established his right of property, there
is no reason why deference to any person, natural or artificial, not even the
United States, should prevent him from using the means which the law gives
him for the protection and enforcement of that right.' Said the court further in

that case:
108 'No man in this country is so high that he is above the law. No officer of the
law may set that law at defiance with impunity. All the officers of the
government, from the highest to the lowest, are creatures of the law and are
bound to obey it. It is the only supreme power in our system of government, and
every man who, by accepting office, participates in its functions is only the
more strongly bound to submit to that supremacy, and to observe the limitations
which it imposes upon the exercise of the authority which it gives.'
109 In that case the court reaffirms the doctrines of Osborn v. Bank of U. S. 9
Wheat. 738. The latter was a suit to recover moneys which officers of the state
of Ohio, in conformity with its statutes, had illegally taken from a bank of the
United States. The suit being against the officers of the state, the objection was
taken that it could not be sustained without the state itself being a party; that
the state could not be sued; consequently, it was argued, the relief prayedthe
restoration of the moneycould not be granted. But to that objection the court,
speaking by Chief Justice MARSHALLand this language is quoted
approvingly in the Arlington Case, [1 SUP. CT. REP. 240,]said:
110 'If the state of Ohio could have been made a party defendant, it can scarcely be
denied that this would be a strong case for an injunction. The objection is that
as the real party cannot be brought before the court, a suit cannot be sustained
against the agents of that party; and cases have been cited to show that a court
of chancery will not make a decree unless all those who are substantially
interested by made parties to the suit. This is certainly true where it is in the
power of the plaintiff to make them parties, but if the person who is the real
plaintiff, the person who is the true source of the mischief, by whose power
and for whose advantage it is done, be himself above the law, be exempt from
all judicial process, it would be subversice of the bestestablished principles to
say that the laws could not afford the same remedies against the agent
employed in doing the wrong which they would afford against him could his
principal be joined in the suit.'
111 The decision in that case has not been heretofore questioned in this court. It
seems to establish, upon grounds which cannot well be shaken, that a suit
against state officers, to prevent a threatened wrong to the injury of the citizen,
is not necessarily a suit against the state within the meaning of the eleventh
amendment of the constitution; for, said the chief justice, 'the eleventh
amendment, which stitution; for, said the chief justice, 'the eleventh
amendment, which restrains the jurisdiction granted by the constitution over
suits against states, is, of necessity, limited to those suits in which a state is a

party to the record.' Here the state is not a party to the record. Here, only
officers of Louisiana are parties defendants; and the relief asked is that they be
required to perform purely ministerial duties imposed upon them by the statute
and constitution of 1874, whose provisions, as respects the matters now in
issue, are still in force and obligatory, because never affected, modified, or
repealed, otherwise than by a debt ordinance, subsequently adopted, conceded
to be in conflict with the constitution, and therefore absolutely void.
112 There are other decisions of this court still more directly in point. The leading
one is Davis v. Gray, 16 Wall. 204. In that case it appears that the state of
Texas made a grant of lands to a railroad company, upon the basis of which
bonds were issued known as landgrant mortgage bonds. They were sold in large
numbers, both in this country and Europe. Subsequently the state, by provisions
of its statutes and constitution, attempted to repudiate and nullify its contract;
and, in pursuance thereof, its officers proposed to issue patents to others for a
part of the lands embraced in this grant. Thereupon a suit in equity was
instituted in the circuit court of the United States against the governor and landoffice commissioner of Texas, to prevent them from issuing patents for the
lands or any part of them. The state was, of course, not made a party on the
record. The bill was demurred to upon the ground that she could not be sued,
and that the suit, being against her officers, was one, within the meaning of the
constitution, against the state. The demurrer was overruled, and the relief asked
was given.
113 Touching the question of jurisdiction, the court, speaking by Mr. Justice
SWAYNE, stated these principles as having been announced in Osborn v. Bank
of U.S.:
114 (1) That a circuit court of the United States, in a proper case in equity, may
enjoin a state officer from executing a state law in conflict with the constitution,
or a statute of the United States, when such execution will violate the rights of
the complainant. (2) Where the state is concerned, the state should be made a
party, if it can be done. That it cannot be done is a sufficient reason for the
omission to do it, and the court may proceed to decree against the officers of
the state in all respects as if the state were a party to the record. (3) That in
deciding who are parties to the suit the court will not look beyond the record.
Making a state officer a party, said the court, does not make the state a party,
although her laws prompt his action, and the state stands behind him as the real
party in interest.
115 It was in conformity with those doctrines that the relief asked in Davis v. Gray
was given. See, also, Vattier v. Hinde, 7 Pet. 263-4; Louisville R. Co. v. Letson,

2 How. 551; 2 Story, Const. 1685; 1 Kent, Comm. 351.

116 In part upon the authority of Davis v. Gray and Osborn v. Bank of U. S., this
court, in Board of Liquidation v. McComb, 92 U. S. 538, maintained the right
of a holder of consolidated bonds to a decree against the officers of the state of
Louisiana, who are here defendants, constituting the board of liquidation,
preventing the use of such bonds for the payment of a debt due from the state to
a levee company. The proposed action of the board was based upon a statute
passed March 2, 1875. So that the suit had for its object to prevent state
officers, charged with the execution of the latter act, from carrying out its
provisions. It never occurred to this court that the suit was, for that reason, one
against the state within the meaning of the constitution. Upon the general
question whether the defendants, being officers of the state, were amenable to
process from a federal court, Mr. Justice BRADLEY, speaking for this court,
observed:
117 'On this branch of the subject the numerous and well-considered cases
heretofore decided by this court leave little to be said. The objections to
proceeding against state officers by mandamus or injunction areFirst, that it
is, in effect, proceeding against the state itself; and, secondly, that it interferes
with the official discretion vested in the officers. It is conceded that neither of
these things can be done. A state, without its consent, cannot be sued by an
individual; and a court cannot substitute its own discretion for that of executive
officers in matters belonging to the proper jurisdiction of the latter. But it has
been well settled that when a plain official duty, requiring no exercise of
discretion, is to be performed, and performance is refused, any person who will
sustain personal injury by such refusal may have a mandamus to compel its
performance; and when such duty is threatened to be violated by some positive
official act, any person who will sustain personal injury thereby, for which
adequate compensation cannot be had at law, may have an injunction to prevent
it. In such case, the writs of mandamus and injunction are somewhat correlative
to each other. In either case, if the officer plead the authority of an
unconstitutional law for the non-performance or violation of his duty, it will not
prevent the issuing of the writ. An unconstitutional law will be treated by the
courts as null and void. Osborn v. Bank of U. S. 9 Wheat. 859; Davis v. Gray,
16 Wall. 226.'
118 Upon these grounds the decree of the circuit court was affirmed, so far as it
prohibited the debt due the levee company from being funded in consolidated
bonds. Such use of them was deemed an impairment of the contract rights of
those who were entitled to receive them.

119 It seems to me impossible, in view of our decision in McComb's Case, apart

from previous decisions upon which it was founded, to hold that these suits are
forbidden by the eleventh amendment of the federal constitution. In that case
we have adjudged that there is power in the courts of the Union, in a suit by an
individual against state officers, to prevent them, in execution of an
unconstitutional statute, from using these consolidated bonds for purposes
inconsistent with the contract under which they were issued. In these cases it is
determined that those courts are powerless, in suits against such officers, to
prevent the misapplication of moneys collected for the purpose of meeting the
interest on those bonds; and this, in part, upon the ground that the relief asked
will require the officers, who have charge of those moneys, to disregard the
confessedly void orders of the supreme political power of the state.
120 It may be asked, when before has this court found the unconstitutional mandate
of a state to be an obstacle in the way of compelling her officers to respect
rights of contract, the obligations of which are protected against impairment by
any law of the state? Of what value is the contract clause of the federal
constitution if it cannot be enforced against hostile provisions of a state
constitution? This court said, in Dodge v. Woolsey, 18 How. 360, that 'a change
of constitution cannot release a state from contracts made under a constitution
which permits them to be made;' in Jefferson Branch Bank v. Skelly, 1 Black,
448, that a contract between Ohio and a bank in that state 'was entitled to the
protection of the constitution of the United States against any law of the state of
Ohio impairing its obligation;' in Railroad Co. v. McClure, 10 Wall. 515, that
'the constitution of a state is undoubtedly a law,' within the meaning of the
contract clause of the constitution, and that 'a state can no more do what is thus
forbidden by one than by the otherthere is the same impediment in the way
of both;' in White v. Hart, 13 Wall. 652, that 'it is well settled by the
adjudications of this court that a state can no more impair the obligation of a
contract by adopting a constitution than by passing a lawin the eye of the*
constitutional inhibition they are substantially the same thing;' and in Gunn v.
Barry, 15 Wall. 625, that the constitution of the United States 'is above and
beyond the power of congress and the states, and is alike obligatory upon both;
a state can no more impair an existing contract by a constitutional provision
than by a legislative act; both are within the prohibition of the national
constitution.'
121 Why should these established doctrines of the court be overruled, as, for all
practical purposes, they are, by the judgment this day rendered? The
constitution declares that it shall be the supreme law of the land, 'anything in
the constitution or laws of any state to the contrary notwithstanding.' Its
mandate, in that respect, is addressed alike to the judges of the federal and state

courts, for it declares that 'the judges in every state shall be bound thereby.'
And, as is said in Dodge v. Woolsey, 'to make its supremacy more complete,
impressive, and practical, that there should be no escape from its operation, and
that its binding force upon the states and the members of congress should be
unmistakable, it is declared that 'the senators and representatives, before
mentioned, and the members of the state legislatures, and all executive and
judicial officers, both of the United States and of the several states, shall be
bound by an oath or affirmation to support this constitution.'
122 Nor can I agree that the officers of the stateif the relief here asked be granted
cannot be protected against any subsequent action of the state. If proceeded
against because of their compliance with the judgments of the courts of the
Union, the suit can ultimately be brought here for review.
123 Upon the general question of the power of a circuit court to grant a mandamus
against state officers, there are some propositions announced by the court
which should be examined. The fact is mentioned that the coupons held by
plaintiffs have not been reduced to judgment, and it is said that a circuit court,
in exercising its original jurisdiction, can ordinarily grant a writ of mandamus
only in aid of some existing jurisdiction. As the state cannot be sued as a party
defendant, to say that a judgment for the amount of the coupons is a condition
precedent to a mandamus is only another form of saying that there is no remedy
whatever to prevent the misapplication of the moneys raised under the contract
and by virtue of the statute and constitution of 1874. The demands of the
plaintiffs are not disputed, except upon the ground that the debt ordinance has
assumed, without the consent of the state's creditors, to remit the interest falling
due January 1, 1880, and to divert the funds raised to meet it. The genuineness
of the bonds and coupons is not questioned. The case, therefore, comes within
the rule, explicitly laid down in McComb's and other cases, that mandamus will
lie to compel the performance by a public officer of a plain ministerial duty,
requiring no exercise of discretion. Such a remedy is absolutely essential for
the protection of the rights here claimed.
124 Upon this question, reference is made by the court to Bath Co. v. Amy, 13 Wall.
247, and Davenport v. Dodge Co. 105 U. S. 242. In the first of those cases it
was decided that a circuit court had no power, under the act of 1789, to issue a
writ of mandamus except where necessary or ancillary to the exercise of its
jurisdiction. And that doctrine was reaffirmed in Davenport v. Dodge Co., upon
the authority of Bath Co. v. Amy, but without any question being raised in the
former case as to the power of a circuit court to issue writs of mandamus since
the act of March 3, 1875. It will be found that the decision in Bath Co. v. Amy
was based upon McIntire v. Wood, 7 Cranch, 504; McClung v. Silliman, 6

Wheat. 601; and Kendall v. U. S. 12 Pet. 584.

125 In McIntire v. Wood a circuit court was held to have authority to issue such
writs only when necessary to the exercise of its jurisdiction. But it was said:
126 'Had the eleventh section of the judiciary act [the one declaring what suits shall
be within the original cognizance of circuit courts] covered the whole ground of
the constitution, there would be much reason for exercising this power in many
cases wherein some ministerial act is necessary to the completion of an
individual right arising under the laws of the United States, and the fourteenth
section of the same act would sanction the issuing of the writ for such a
purpose. But although the judicial power of the United States extends to cases
arising under the laws of the United States, the legislature have not thought
proper to delegate the exercise of that power to its circuit courts, except in
certain specified cases.'
127 In Kendall v. U. S. the previous cases were held to decide that the writ was
appropriate to compel the performance of a ministerial act, necessary to the
completion of an individual right arising under the laws of the United States. 12
Pet. 616, 617. In all the cases prior to Bath Co. v. Amy the want of power in a
circuit court to issue the writ, in the first instance, and in advance of a judgment
establishing the rights of the parties, was put distinctly upon the ground that the
whole judicial power of the United States had not been delegated to the circuit
courts. In Kendall's Case, however, the power of the circuit court, in the
District of Columbia, to compel the postmaster general by mandamus to
perform a duty enjoined by an act of congress, was sustained, because,
differently from the circuit courts in the several states, its jurisdiction then
extended to all cases in law or equity arising under the laws of the United
States. Now, it is apparent that the act of March 3, 1875, supplies what was said
in McIntire v. Wood and McClung v. Silliman to be wanting. It substantially
'covers the whole ground of the constitution.' It invests the circuit courts of the
United States with original jurisdiction, and with jurisdiction by removal from
the state courts, of all suits at law or in equity, where the matter in dispute
exceeds, exclusive of costs, the sum or value of $500, arising under the
constitution or laws of the United States, or treaties made, or which shall be
made, under their authority; or in which the United States are plaintiffs or
petitioners; or in which there is a controversy between citizens of different
states; or a controversy between citizens of a state and foreign states, citizens,
or subjects; or a controversy between citizens of the same state claiming lands
under grants of different states.
128 It seems to me entirely clear that since the enlargement, by the act of March 3,

1875, of the jurisdiction of the circuit courts, they have power, in the first
instance, and in advance of a judgment to issue a writ of mandamus, to compel
the performance of purely ministerial acts, requiring no exercise of discretion,
and which are necessary to the protection or completion of an individual right
arising under the constitution or laws of the United States. Unless the circuit
court can interfere, by injunction, to prevent the officers of the state from doing
what they propose to do, and, by mandamus, to compel them to perform the
ministerial acts required by the statute and constitution of 1874, then its new
and enlarged jurisdiction is of no practical value in any case where a state
determines to repudiate its contracts and to enforce ordinances impairing their
obligation. The power has always existed in those courts to issue such writs, not
specifically provided by statute, as 'may be necessary for the exercise of their
respective jurisdictions, and agreeable to the usages and principles of law.' 1 St.
81, 334; Rev. St. 716. Jurisdiction to hear and determine a suit arising under
the constitution and laws of the United States carries with it the power to issue
either a writ of mandamus or a writ of injunction, or both, when essential to the
protection and enforcement of rights involved in that suit. In such cases the writ
is, in every legal sense, not simply necessary, but vital to the exercise of the
jurisdiction granted.
129 It must also be observed that the mandamus suit was commenced in an inferior
court of the state, and thence removed into the circuit court of the United states.
If the power of the latter depended upon the question whether the state court
could, by mandamus, compel a state officer to perform plain official duties
imposed by law, the writ should go. This court, I submit with great confidence,
is in error if it means to say that Hart v. Burke, 33 La. Ann. 498, decides, or
that the supreme court of Louisiana has ever decided, that the courts of that
state cannot, under any circumstances, compel the officers of the state, by
mandamus, to perform plain official duties requiring no discretion. The state
Code of Procedure expressly declares that the writ 'may be directed to public
officers to compel them to fulfill any of the duties attached to their office, or
which may be legally required of them.' Section 834. It is, I think, clear that,
but for the debt ordinance that court would have sustained the writ in Hart v.
Burke, and compelled the state officers to obey the statute and constitution of
1874. What that court adjudged was that while an* officer could not plead the
authority of an unconstitutional statute as a justification for the nonperformance or violation of his duty, it was different where the authority is an
article in the state constitution. Upon that ground alone the writ was refused in
Hart v. Burke.
130 That I do not misinterpret that case is clear from Newman v. Burke, etc.,
determined in April, 1882. Newman, holding warrants on the general fund of

the state for 1880 and 1881, claimed that by virtue of the debt ordinance he was
entitled to be paid out of moneys in the hands of state officers, collected under
the statute and constitution of 1874, and by that ordinance directed to be
transferred to the general fund. He obtained by the judgment of the supreme
court of the state an order for a mandamus against the state treasurer and fiscal
agent, directing them to conform their books to the requirements of the debt
ordinance, subject, however, to the right and duty of those officers 'to retain in
statu quo so much of the fund in controversy as may be necessary to satisfy the
pending claims of S. J. Hart and John Elliott et al., * * * in case judgment
should be rendered in their favor in the judicial proceedings instituted by them,
and now pendin the supreme court of the United States.' So that they only await
the final determination of these suits to ascertain whether they can safely
execute a state ordinance in conflict with the federal constitution.
131 The state court, affirming the doctrines of Hart v. Burke, said:
132 'Inasmuch as no court can ever acquire jurisdiction over a state, or to enforce a
contract of a state against her will, it follows that no court can ever have power
to decree the invalidity of any provision of the state constitution, on the ground
that it impairs the obligation of such a contract. But unless the court may
decree the nullity of such a provision, on such a ground, it follows that it cannot
compel the officers of the state to do anything in violation thereof, because the
constitution of the state is their exclusive mandate, and absolutely binding on
them.'
133 This language needs no interpretation. While the federal constitution declares
that it shall be the supreme law of the land, anything in the constitution of any
state to the contrary notwithstanding, the supreme court of Louisiana holds that,
in the matter of state contracts, her constitution is the exclusive mandate to, and
absolutely binding upon, her officers, anything in the constitution of the United
States to the contrary notwithstanding. And I take leave to say, with all respect
for my brethren, that the decision this day rendered can be sustained upon no
other ground. But in vain has this court repeatedly adjudged that a suit against
the officers of a state or enforce the performance of plain official duties is not
necessarily one against the state, within the meaning of that constitution; in
vain has it often decided that contracts with states are as fully protected by that
constitution as are those between individuals, and that a state can no more
impair an existing contract by constitutional provision than by a legislative act;
in vain have the circuit courts of the United States been invested with
jurisdiction of all suits arising under the constitution and laws of the United
States; in vain does that constitution declare that it shall be the supreme law of
the land, binding upon the judges in every state, if it be true, as determined by

the supreme court of Louisiana, that no court can ever have power to decree a
provision of a state constitution invalid on the ground that it impairs the
obligation of contracts with that state, or to compel state officers to disregard
such invalid provision.
134 As further evidence that the state court recognizes the right to a mandamus
compelling, state officers to discharge ministerial duties, imposed by provisions
of the debt ordinance, I refer to Eucyer v. Burke, reported in the same volume
with Hart v. Burke, 33 La. Ann. 969. Eucyer was the owner of certain
consolidated bonds, issued under the act of 1874. He concluded to accept the
provisions of the debt ordinance of 1879, and, in conformity therewith, applied
to the state treasurer to have his bonds stamped, so as to show that he acceded to
the reduction of interest made by that ordinance. The state treasurer declining to
comply with this request, an application was made to an inferior state court to
compel him to stamp the bonds. His refusal to comply with the relator's
demands was based in part upon a statute passed in 1880, (after the debt
ordinance went into operation,) which declares that no bond shall be stamped
until the coupons of January, 1880, were surrendered. That the relator did not
do. Mandamus was refused by the inferior court, but the supreme court of
Louisiana, after deciding that the act of 1880 was inoperative, because in
conflict with the debt ordinance, said:
135 'In his answer defendant alleges that the service required of him by relator is not
a ministerial duty, and that the judiciary has no control over the executive and
co-ordinate branches of the government, except as regards purely ministerial
duties of executive officers. As regards the first proposition, we decide that the
service required in this case is the performance of a purely ministerial duty, and
this is too plain to require argument. As to the second proposition, it is
elementary; but, while fully recognizing the independence and all the rights of
the co-ordinate branches of the government, it is only necessary to say that it is
the province and duty of the judiciary, whenever the question is properly
brought before it in judicial proceedings, to decide whether duties sought to be
enforced at the hands of officers are or are not ministerial, and it is of the
essence of the judiciary to adjudge such questions, as otherwise those officers
would themselves, by their own decision, be judge of their legal and
constitutional powers.'
136 The judgment of the lower court was reversed, and the mandamus ordered to be
issued, at the cost of the state treasurer in both courts.
137 Thus it is shown that the same court which determined Hart v. Burke has
decided that the courts of Louisiana have power, by mandamus, to compel an

officer of the state to discharge ministerial duties, requiring in their

performance no discretion upon his part; especially when necessary to enforce a
provision in the state constitution in conflict with the constitution of the United
States.
138 It would seem, then, the holders of the consolidated bonds of Louisiana are in
this anomalous condition: While the state courts, because of the debt ordinance
in the new constitution, will not, by mandamus, compel its officers to perform
the purely ministerial duties imposed by the statute and constitution of 1874,
but will, by using that writ, require those officers to execute the provisions of
that ordinance, although it is in conflict with the federal constitution, the courts
of the United States, though now invested with jurisdiction of all suits arising
under the constitution and the laws of the United States, are, it seems, without
power to compel those officers to respect the inhibition in the supreme law of
the land against state laws impairing the obligation of contracts. Such are the
results which follow from the action of the supreme political power of a state
whose officers, sworn to support the constitution of the United States, are
required by the state court to look to the state constitution as their 'exclusive
mandate and absolutely binding on them.'
139 My own conclusions are: That the officers of Louisiana cannot rightfully
enforce provisions of its constitution which conflict with the supreme law of
the land, and the courts of the Union should not permit them to do so; that but
for the adoption of the unconstitutional debt ordinance of 1879, and whether
the suits were in a state court or in the circuit court of the United States, these
state officers would have been restrained by injunction from diverting the funds
collected to meet the interest on the consolidated bonds, and would have been
compelled, by mandamus, to perform the purely ministerial duties enjoined by
the statute and constitution of 1874; that if by existing laws the circuit court of
the United States has no power to issue such writs, still, upon the removal of
the mandamus suit from the state court, the former had power to do what the
state court could legally have done had there been no removal, viz., make
peremptory the alternative mandamus granted at the beginning of the suit by
the inferior state court; that the debt ordinance being void because in conflict
with the constitution of the United States, furnishes no reason whateverleast
of all in the courts of the Unionwhy the relief asked should not be granted by
any court of proper jurisdiction as to parties; that to refuse relief because of the
command of a state to its officers to do that which is forbidden, or refrain from
doing which is enjoined, by the supreme law of the land; or to give effect, for
any purpose, in the courts of the Union, to the orders of the supreme political
power of a state, made in defiance of the constitution of the United States,is,
practically, to announce that, so far as judicial action is concerned, a state may,

by nullifying provisions in its fundamental law, destroy rights of contract, the

obligations of which the constitution declares shall not be impaired by any state
law. To such a doctrine I can never give my assent.
140 I am, therefore, unable to concur in the opinion and judgment of the court.

1 SUP. CT. REP. 240.